Facebook Is a Government-Protected Monopoly

In 1954, traveling milkshake-mixer salesman Ray Kroc visited a hamburger stand designed and managed by brothers Richard and Maurice McDonald. He was impressed. Freshly cooked hamburgers were delivered to customers based on principles of the assembly line.

The kitchen and counter space were rationally coordinated to distribute food immediately upon its purchase. There was no waiting—or waitressing—as customers accepted a discount to provide their own table service and clean-up.

It worked fabulously and Kroc stole the idea.

The success of McDonald’s in the 1960s led to Burger King, Burger Chef, Carl’s Jr., Hardee’s, and hundreds of other local players. They all adopted the McDonald brothers’ assembly-line approach and menu, making slight adjustments for taste.

The evolution of fast food in America would have been different if the McDonald brothers could have applied for a patent to claim exclusivity for their idea.

Intellectual property law, though, is not meant to reward people merely for their ingenuity. Article 1, Section 8 of the U.S. Constitution charges Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”

The McDonald brothers did not seek federal protection for their design because it was not a writing or invention. They just used existing technology more reasonably and efficiently than others.

The greater good was served by allowing businesses to reverse engineer their clever idea and spread it from sea to shining sea.

This tale came to mind last week as Facebook and other social media platforms banned lots of people for their political beliefs.

In a healthy society, Facebook would have been reverse engineered 20 times by now, and the banned voices would simply take their business elsewhere.

Instead, Facebook and other social media sites are government-protected monopolies. They have successfully sold themselves as inventions that are protected by intellectual property laws.

The Department of Justice and federal courts act as their leg breakers, making sure nobody competes with them.

It is completely screwed up.

As with many dumb federal policies, the bright lights of Conservative, Inc. who have occupied Washington for a generation bear some responsibility.

The Right’s think tankers have advocated an interpretation of the law that provides excessive protection to clever coders. Mark Zuckerberg’s inordinate wealth, it is thought, is an incentive encouraging similar invention.

But Zuckerberg did not invent anything. The computer, the microchip, and the ability to program them were invented long before he started diddling with Atari BASIC.

To reward someone who is the first to use inventions to arrive at an inevitable function only crushes competition.

It would be as if Lewis and Clark made an ownership claim on the West because they were the first to explore it. And if the federal government agreed with them, erecting a giant gate outside of St. Louis where anybody wishing to cross the Great Plains had to pay a fee to the explorers before they passed.

Lewis and Clark would have become wildly rich because of their federally protected cartel and it might not have been long before they, or their wives, or the people they hung out with at the club started to think it was a good idea to ban certain undesirables from travel to California.

That, essentially, is what happened last week with Facebook.

Here’s a modest proposal. Computer programs are written on paper, sure, but they are not artistic expressions. The same law adopted to protect The Great Gatsby from unlicensed duplication should not protect the kid who wrote an instruction manual in his college dorm room for his computer to act as a social network.

There should be incentives for the kid, obviously. He should even get rich. But he should not be rewarded with a government-enforced exclusive franchise in something someone else would have done if he did not.

The Winklevoss twins had a point.

The answer is not more government regulation, but less. The law should permit a milkshake mixer salesman to reverse engineer Facebook.com and call his version Gatheringplace.com or something.

He would have to change the names of trademarked features, but the divergence would be as narrow as the sliver that exists between “Big Mac” and “Whopper.”

After those slight alterations, he could have the substantive equivalent of likes, shares, a profile and background picture, posts listed in stacked order from most recent to oldest, messaging, and a distinctively green background with an omnipresent GP logo.

If that happened, Milo Yiannopoulos would be on a Gulfstream jet now, flying to Oak Brook, Illinois or other such place where milkshake salesmen turned captains of industry live, to be sold on choosing Gatheringplace.com instead of that upstart in Austin, Texas, Ideaforum.com.

With competition, Facebook would be reluctant to ban anyone who brings huge amounts of traffic to the site. Mark Zuckerberg would have to deal with an angry board of directors demanding to know why he thinks he has the right to offend important customers based on his personal political beliefs.

That is not happening because we have allowed our betters in Washington to organize society based on useless abstractions that serve them and their benefactors, instead of the common good.

What we need is a revolution against the Washington establishment to replace special interests spouting trite slogans with public policies that consider how their implementation affects ordinary Americans.

Oh, wait. We’re in one of those revolutions. Maybe Facebook and other social media sites have chosen sides because they fear governance by the rabble and what that might mean to their preferential business model.

Your move, President Trump.

Photo Credit: Amy Osborne/AFP/Getty Images

About Thomas Farnan

Thomas J. Farnan is an attorney in Pittsburgh, Pennsylvania. His writing has appeared in Forbes and he is a regular contributor to Townhall.com and the Observer. Follow him on Twitter @tfarnanlaw.

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